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I hate to pee in the pool, here, but I’m having a hard time getting too excited about today’s decision.

Justice Antonin Scalia’s opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights. Scalia’s opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

As Jacob Sullum noted earlier, Scalia also goes out of his way to note that the "individual right" the Court found today doesn’t undo onerous regulations on the sale of guns, leaves untouched bans on "unusual or dangerous" weapons, and doesn’t overturn existing bans on concealed carry.

So what’s the real practical effect of today’s ruling? Seems to me, it’s limited to the following:

• A future Congress is barred from passing a uniform federal ban on handguns or rifles in the home. Just about any other federal regulation would probably still be okay, provided it meets the minimal Commerce Clause test in U.S. v. Lopez.

• The 600,000 residents of Washington, D.C. and residents of other federal protectorates now have the constitutional right to own a handgun, provided they meet a set of conditions put forth by the city council—the limits of which will be litigated at a future date. Also, even this right for this small group of people extends only to handguns or rifles kept in the home.

Any other city, state, or locality may still pass a gun law just as restrictive as the one struck down in D.C. And even the D.C. city council can still make its citizens jump through a number of hoops before allowing them to own a handgun.

Today’s ruling gave the right a rhetorical victory (remember, elections are "all about the judges!"), but I’m not sure what it accomplished in actually protecting Second Amendment rights. To be fair, Scalia explains that Heller was basically a case of first impression, and there’s much to still work out through litigation. But given the narrow reach of his opinion, I guess I’d just caution against too much optimism that any new litigation will come out the right way.

44 Responses to “Some Skepticism on Heller”

I’ve been amazed by the jubilation by Libertarians, Gun Owners and other Liberty loving types over this decision. It isn’t the win everyone thinks it is as first blush.

One of the most important aspects is that Scalia writes:

“the most natural reading of ‘keep Arms’ in the Second Amendment is to “have weapons.”

“The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

It’s as if Scalia is specifically denying the true purpose of the 2nd and writing a totally new one. It no longer is designed to protect the citizenry against a tyrannical government but instead a limited right given to protect people from criminals in their own homes and he gives the state some sort of right to license that right.

At first blush it is a weasel decision by a government attempting to justify it’s unconstitutional actions by throwing out a smokescreen decision that is obscuring the fact that they’re actually re-writing and limiting the Liberty they’re “upholding”.

Just as ominous is the opinion of the minority. To have people in that sort of position with such an absolute disconnect with (or outright contempt of) the basic, fundamental concepts of Liberty, the Constitution and Freedom and their foundation in our Republic in general is absolutely frightening.

I agree. The more I think and read about Heller, the less excited I am about it. And all the people saying “see, if Obama is elected this will be overturned” are scaring me. Have they forgotten about the rest of the bill of rights and what is already happening to it? I guess I am just glad I live in a state with a clear constitutional right to keep guns and with courts who have preserved it pretty well. I still think I should be allowed to keep a bazooka and an anti-aircraft gun, though. Just in case.

I don’t know, it sure is better than the alternative. If decided the other way, it would have opened the door for all kinds of gun bans in every city having any amount of crime. Also, consider:

“Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a milita, and to use that arm for traditionally lawful purposes …”

I admit I haven’t made it all the way through the text yet because I have to keep closing the screen when someone comes up behind me, but I’m pretty sure it’s the holding that is of the greatest importance in any case and not dicta buried in 50 pages down. Of course, it would not be too difficult for our illustrious leaders to redefine the term “traditionally lawful purposes” or for King George to further gut our Constitution via another one of his Executive Orders, but I think it would be hard to argue that Heller did not get what he asked for. The ramifications of this down the road are anyone’s guess.

There is also something else for those that believe the supreme court is somehow the top of our political food chain, 4 judges voted to basically ignore the 2nd amendment entirely. The same 4 who ignored articles 1, 2, and 3 in their decision last week. Still feel good about putting your lives and livelihoods in the hands of 5 unelected judges?

I’m sorry, but I don’t understand: I thought for a state to become a part of this union it was required to ratify or in some way affirm its commitment to the Constitution. I thought this concept was even further cemented when the Fourteenth Amendment firmly bound the states to respect the “privileges and immunities” of citizens of the United States, which I always assumed included those privileges granted by the Second Amendment. Maybe I’m just stupid, or lack some vital understanding of the law, but my question is why is a state any less bound to uphold the Second Amendment than it is any other amendment? What stops Utah from denying women the right to vote in state elections, or Mississippi from reinstating Jim Crow?

If it’s any consolation, once the people reach the point where they believe that it’s the right time to violently stand up to oppressive government, they’re really not going to care that there are laws on the books telling them not to…so the gun bans would largely be moot because the people will simply either ignore or circumvent them.

Just as ominous is the opinion of the minority. To have people in that sort of position with such an absolute disconnect with (or outright contempt of) the basic, fundamental concepts of Liberty, the Constitution and Freedom and their foundation in our Republic in general is absolutely frightening.

Agreed.

This was a win for liberty, but how little of a win it was and how far removed from liberty we are is depressing. The Bill of Rights is being eviscerated. This extremely straightforward right to keep and bear arms as a guard against tyranny has been trampled almost entirely to death, and today they said we have a right to fight crime.

Well, at least we don’t have to rely on our government to give us the right back. The Bill of Rights acknowledges that it is an absolute fundamental human right they are not to infringe upon. It doesn’t give us a right. The only decision for us is when to put the leash back on our government.

A quote from another forum, whose author I heartily agree with:
“My conclusion is that this is this first step in a long journey. It is not the baby step it could have been, nor is it the giant step we wanted it to be.”
IANAL, but from my limited knowledge of judicial review, I believe the reviewing justices are limited to reviewing the question(s) specifically put before the court, which in this case was the total ban on ownership. Being that DC is a federal entity, incorporation to states and/or cities was not at issue. Carry (open or concealed) outside the home was not at issue.

The good news on incorporation is that we won’t have to wait long – the Illinois SRA & the NRA’s already filed a challenge to Chicago’s (and suburbs’) ban, and that San Francisco’s won’t be far behind. Also, other commentary on fn 23 suggests that the mention of Cruikshank leaving out the First Amendment during the first pass at incorporating anything means that Scalia is saying, “Don’t be afraid that we didn’t incorporate the 2nd on its first look either.”

I’d be surprised as well if residents of states like IL & WI who absolutely forbid concealed carry (or the several states who have discretionary “may-issue” permits for such) don’t mount a challenge on that basis in the very near future.

The big question that has underpinned all gun control/victim disarmament debate has now been answered, and it was answered in Holding #1 on Page #1. THAT’s what we’re all so excited about. With that issue settled once and for all, the future will hopefully be a fertile ground for continuing the steady erosion of gun control that’s been happening since Florida started both the concealed carry wave and the Castle doctrine wave.

Scalia also goes out of his way to note that the “individual right” the Court found today doesn’t undo onerous regulations on the sale of guns, leaves untouched bans on “unusual or dangerous” weapons, and doesn’t overturn existing bans on concealed carry.

That’s because none of those had anything to do with the question before the court. Heller and his lawyers deliberately made the the complaint as narrowly-tailored as possible in order to ensure victory. Even so, we’re still only one heart attack away from the Supreme Court agreeing with Obama and telling us that the Second Amendment, for all intents and purposes, does not exist.

However, IF the DC City council passes any laws then the people can attack those because the DC city council cannot pass any laws in the District, regardless of what Congress allows.

Article I, Section 8, Paragraph 17 of the Constitution specifically transfers “EXCLUSIVE LEGISLATION” to Congress. To be exclusive denies any other body the power of exercising such authority.

This delegation of authority is not exclusive of the Constitution and is not absolute legislation. The delegation cannot be exclusive of the Constitution because without the Constitution the delegation would not exist. It is exclusive of all other governments. If Congress were to unconstitutionally re-delegate a delegated power, Congress would commit a breach of trust AND would violate the explicit “..to exercise exclusive legislation in all cases whatsoever…”.

Next, we must break past the lie, that the supreme court has the authority to even make this decision. First we must understand the concept of Creator/created, i.e. Superior/subordinate. We the People are the Creator of the Constitution and as such are the superior, the Constitution being the subordinate. The Constitution is not rules for the People, it is rules for the government. Next, the Constitution becomes the Creator, the superior, when it creates the branches of government, the subordinates. The Court is one of the subordinates. A subordinate cannot determine the authority of the superior, the supreme Court cannot legitimately determine the extent of the words in the Constitution, being subordinate to Constitution. This lie has been perpetrated on the People by power-hungry men and women. The Constitution can have only the meaning directly purported by the most common understanding of the words. There are no blanks between the lines.

When We the People disagree with a decision, We the People hold the authority, the sole authority to override and ignore it as aptly stated by Sir William Blackstone.

For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone’s Commentaries on the Laws of England, Book I, Chp3, pg.205/6F

We the People have been hornswoggled. We have been lied to. The judges have stolen authority from us. We must relearn the true relationship between us and them. We the People are the sovereign, We the People hold all authority not delegated to the various governments. And We the People can eliminate or change any government any time We the People feel the desire. This was explained in the Declaration of Independence BEFORE the Constitution was created.

…,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…

The Constitution was created when We the People figured out our Articles of Confederation were deficient. The Founding Fathers were not given the power to create a new document, they were to fix the old. But understanding the true place of authority in the People, they framed a completely new document.

It is time for those who can to shake off the brain-washing that has been used to inculcate the wrong ideas in their minds. It is time to return our system to its proper function.

For those wishing a good reading about the 2nd, try Joseph Story’s Commentaries.

CTD has it right. The Court was only asked to rule on two things – doe thes the 2nd Amendment allow DC to ban handguns outright, and t prohibit keeping ready arms in private homes. It ruled to(correctly) that it does not. The Court did not rule on registration because the Heller team explicitely chose not to challenge registration (Heller indicated that he’d be OK with getting a permit if a permit was guaranteed). Since the case only involved handguns and did not involve a state’s law, the Court could not rule on other types of guns and could not claim incorporation under the 14th Amendment. It was simply out of the Court’s scope for this case.

This is actually the best they could give us under the circumstances. Had the Court ruled more broadly, the decision would be more readily subject to future attack – a future Court could reverse the decision by claiming Heller overstepped itself, that the Court had legislated from the bench.

By ruling as they did, the Court gave us a pretty rock-solid affirmation that there is at least some individual right to arms, and we can use that to litigate on future issues (state laws, weapon types, etc.) From some of the in dictum comments, I think this Court will look favorably on that litigation.

It’s not a broad win, true, but it’s a deep one. It’s frustrating, but it’s the way the game is played.

Hi, I’m John McCain. The recent Supreme Court decision on gun rights has highlighted one of the big differences between myself and Senator Obama. You see despite my respect for Senator Obama, there are some issues that we are polar opposites on. Senator Obama favors heavy handed laws like those passed in his native Illinois. I have stood firm for gun rights all of my life. The next president will probably appoint 2 justices to the bench, and numerous other federal judges.

Paid for by John McCain for president.

PS
I’m against anyone of Vietnamese heritage owning a firearm. I’ve seen enough of those bastards walking around with guns all day, and frankly the thought of seeing one more could send me over the edge.

One of the guiding principles of judicial economy is to only decide what is required for any given case. In this case, there was nothing more there to decide such things as incorporation.

It’s not surprising that Scalia did not do more, since he generally is pretty good as that sort of judicial restraint.

What I found disappointing is that it ended up 5-4. I really thought that, at least, Souter and Ginsburg had the intellectual integrity to recognize an individual right. Breyer’s dissent is a joke. He spent his time talking about reasonableness at a test, when for every other enumerated right, strict scrutiny, or something close to it, is the standard. Furthermore, as part of that stricter scrutiny, courts are supposed to look at the proffered justification for infringing the right and carefully examine it to see if it really does what they say it does.

So, instead of just accepting DC’s say-so on the effectiveness of its ban, to uphold the ban as Breyer wanted to do, he should have had good data showing how well it worked. (Of course, such data does not exist.)

By the way…. can someone tell me if there or what would the test be for rising up against an oppressive government? We hear this often bandied about, but It seems rather broad…. would it require a majority of the populace? Do you need a referendum? As long as its the truth is it permissible for one person to start a war against an oppressive US government?

I think has been tyrannical and oppressive for at least 100 years. But definitely after the 1950’s everything way wend downhill. Ike tried to warn when he left office….

Basically what I’m getting at is does it even matter? Its not like the government is gonna accept your argument! “Of course we’re not oppressive, this is the best country on earth!” no get in the gas chamber!

My guess is we’ll see a set of “time, place, and manner” restrictions on firearm ownership in the same way the Court has carved out those exceptions for the First Amendment. That is, DC might ban open and/or conceal carry; weapons near schools, churches, and inside bars; all weapons but handguns (and maybe shotguns; Scalia mentioned sawed-offs as a weapon that could be banned, so maybe that means regular shotguns are OK); impose strict licensing requirements and a longer waiting period before purchase, and anything else they can think of that doesn’t approach an outright ban.

Of course, all of those would likely be litigated, so the real winners in all of this are lawyers.

If it were 1925 and the Chicago city council passed an ordinance banning handguns, machine guns or whatever, they would have been laughed those guys out of the city.
“A gun ban won’t end the violence between Al Capone and Bugsy Moran” is what the newspaper columnists would have written. “End alcohol prohibition and the crime and violence will certainly drop.” But here in Washington DC or in modern-day Chicago, the issue of drug prohibition doesn’t even come up.
Tragic.

I believe JT is right. I read the footnote to mean: You can’t use the argument that Cruikshank ruled out incorporation, because 1) that would mean doing the same for the First Amendment and 2) later precedents made it clear that the Bill of Rights does apply to the states. So rather than arguing against incorporation, Scalia is explicitly leaving the door open for a ruling that the Second Amendment does apply to the states.

My take is that #19 has it right. The explicit comparisons to the 1st Amendment mean that the court is heading towards time, place, and manner restrictions, which seems about right to me. Different localities have different problems and no solution is right for everybody. Shorter Scalia: “Status quo, and also, I’m still a hack, with no consistent judicial philosophy whatsoever”.

Better comparison to 1st Amendment jurisprudence: you can carry what you want, as long as you don’t fire in a crowded theater.

As I have posted other places, here is my quick look at it. Both the good and the bad. still reading.

I am reading it over now, heard about it on scotusblog.com(iirc) live, and it sounds like a step in the right direction but it still allows way too many limits on what is a right, not a privilege.

My quick notes, still working on this, will update later (read when done reading the damn thing and have better comprehension of it all.)

The good.

Upheld the 2nd Amendment as an individual right.

States that the prefatory clause doe not limit the operative clause of the 2a.

Finlay defines militia as all males capable of physically capable of acting in concert for the common defense.

And Total bans are a bad thing, possibly cause for challenging the bans in places like New York NY, and Chicago IL, and San Francisco CA. This total ban might also give because for challenging the 86 law, and the steel core ammo import ban, could also be a cause for readdress of the 68 GCA, or the 34 NFA. All good things.

Now the bad. (Insert sad panda face here)

2a is a limited right.

Upheld Miller as ok to limit access to weapons not “in common use at the time”, but see above the 34 NFA made the fire arms not ‘in common use at the time’ then and now, so this might be ok to limit non common use, but if the NFA made them non-common use could that be seen as an infringement, would most likely need a case just to prove this. Also this upholding of Miller just about guaranties that they can not pass another ‘assault weapon ban’ and that’s a very good thing.

Licenses are ok, but you don’t need a license for a right. This is bad because if you need a license then you have it revoked, or not issues in the first place sort a like they do for CCW in CA.

Permits are ok, but you don’t need a permit for a right. See above.

Registration is ok, but you don’t have a registration for a right. See above, and keep in mind that if there is a registration then it is easy to confiscate them after a ban.

And finally the big one, the 2nd amendment might only apply in the house. If this is true, does it mean that we no longer have a right of self defense outside of the house?

[…] decision, while a philosophic victory for the Second Amendment, was too weak in practice. From his article: Scalia’s opinion does interpret the Second Amendment as an individual right, but only for […]

I think this decision is about what should have been expected from this court. If the decision went beyond the question asked by Mr. Heller, this court could be considered an “activist” court, which those of us on the conservative/libertarian side of things see as bad.

Not to say I wouldn’t be doing backflips if the Court had said “Yep, it’s an individual right that shall not be infringed, seems pretty clear to us.” But I’ll take this ruling, because the other option was “No, you don’t have a right to self defense.”

Perfect? No, but as the saying goes, “Perfect is the enemy of the good.” This was a good decision, and I’m glad the residents of Washington DC can defend their homes and their families.

Those four judges voted to uphold the laws passed by Congress. I don’t feel good about putting our lives and livelihoods on the hands of hundreds of elected legislators either.

Actually they voted to ignore the rulings of congress last week just like they voted to ignore the 2nd amendment in the Heller case.
I know the courts prefer to do as they please regardless of precedence but to have 4 judges basically ignore very plain and massive sections of our constitution is, to me, more than a little troubling.

[…] Not that they’re going. Radley Balko very smartly writes Today’s ruling gave the right a rhetorical victory (remember, elections are "all about the judges!"), but I’m not sure what it accomplished in actually protecting Second Amendment rights. To be fair, Scalia explains that Heller was basically a case of first impression, and there’s much to still work out through litigation. But given the narrow reach of his opinion, I guess I’d just caution against too much optimism that any new litigation will come out the right way. […]

This was a good decision, and I’m glad the residents of Washington DC can defend their homes and their families.

Only in their homes, using approved firearms, following the registration+licensing+waiting periods+otherbullshit.

Attacked outside the home? Suck it up
Can’t afford an approved weapon? Suck it up
Are attacked before you’ve jumped through all the hoops? Suck it up
Wish you were a free man left alone to decide what’s best for yourself and your family? Suck it up

And your going to keep paying through the nose for this benevolance. If you don’t, the IRS has guns (of a variety mere citizens aren’t allowed).

“The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.”

Well, it was always a kind of silly notion anyway: such a right can exist only so long as it is unnecessary. It isn’t plausible that you would have a government on the verge of tyranny, which violated every right except that one.

This decision seemed like a no-brainer to me. If the 2nd Amendment means anything at all, it means that Washington DC can not prevent its citizens from owning guns in their homes no quesitons asked.

Had this decision gone the other way it would mean that the 2nd Amendment is completely meaningless – literally. This is basically the equivalent of the Court declaring unlawful a body cavity search of a 6 year old to recover stolen candy under the 4th Amendment. I relaly don’t know how any of the judges ruled the other way.

[…] to repeat even the pointless mistakes of Leftism Past. The practical legal effect of Heller will be minimal. The practical effect on crime will be likewise. Mark Kleiman has made this case for years, […]

As long as federal misconduct in cases like Olofson go unreversed and unpunished, Heller means exactly spit in the wind. Force, not law, governs the ATF’s conduct these days, in case you haven’t noticed. Poor Olofson was forced to take note. When are we going to quit arguing about how many constitutional angels can dance on the head of the Second Amendment pin and DO something about ATF misconduct?

BTW, the only thing I think we CAN do about it is refuse to be arrested and if that means shooting back in self-defense then so be it. Olofson’s case proves there is no such thing as a fair federal trial anymore. If you cannot count on the rule of law then its the law of the jungle. Perhaps we should make them understand that if the law no longer protects us, it no longer protects them either.

BTW, one thing that would have improved the decision immensely would have been if it explicitly provided that (1) in any firearm-related trial, the jury must, upon defense request, be supplied a copy of the decision, and (2) since people have an individual right to keep and bear arms, a jury should not convict someone for disobeying gun-control laws that would have made exercise of that right impossible or unreasonably difficult (the jury would be entitled to some look at the facts of the case in deciding what was reasonable).

The ruling would probably benefit from having more teeth than the above, but the above would at least make it difficult for the tyrants in DC to get convictions for violations of their unconstitutional anti-gun rules.

It appears that we gun owners are as farmers here. Old Ole Olson met on the street in town and asked what do things look like Ole? Ole replied – terrible, terrible. its so dry twill be no crop this year.
The following year again in town Ole was asked – Hows it look Ole? To which Ole replied, terrible, terrible, oh my, its so wet we won’t get into the field this year.
The third year found “Bumper Crops” in the county and Ole’s crop was the best of all. In recognition Ole was asked to say a few words at the County Fair about his good fortune, his “Bumper Crop”. Ole rose to his feet, walked to the front of the crowd, looked down thoughtfully before he spoke, then raising his head he said… “Yes, it was a good crop and mine the best of all, but a crop like that takes a lot out of the soil”.

Like Ole we are never really happy are we?

We have gotten into this “fix” in over 200 years of ignorance, apathy and treason in places high and low. However can’t we be “Thankful” once in our lifetimes?

[…] to Charles Murray (while denying he’s asserting a variety of claims, somewhat reminescent of Scalia on Heller). It’s a shifting of the discourse, as they say. He also questions how meaningful the […]